How Not to Impeach

By Greg Weiner

Jan. 1, 2018

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A billboard calling for the impeachment of President Trump was on display in Times Square in December.CreditCreditJustin Lane/European Pressphoto Agency

WORCESTER, Mass. — With Democratic control of Congress after 2018 increasingly plausible, those who most intensely seek the impeachment of President Trump are organizing, agitating — and conducting a veritable clinic in how not to exercise one of the Constitution’s most solemn powers.

Investigations are still underway, but 58 House Democrats have already voted to consider impeaching Mr. Trump. Tom Steyer, a Democratic megadonor, is running a multipronged campaign calling for Mr. Trump’s impeachment on grounds ranging from his North Korea policy to allegations of obstruction of justice.

It is true that impeachment is a political rather than a criminal device, but not like this. It requires the kind of political judgment concerned with the public good, not with gaining electoral advantage. The prudent path forward lies somewhere between “fiat justitia, ruat caelum” and “Vox populi, vox Dei” — “let justice be done though the heavens fall” on one hand and “the voice of the people is the voice of God” on the other.

Mr. Trump may well have committed impeachable offenses. Many presidents have. The nature of the office, whose governing rules cannot speak to every exigency, inevitably requires risking oneself in the manner Thomas Jefferson described: “An officer is bound to obey orders; yet he would be a bad one who should do it in cases for which they were not intended, and which involved the most important consequences.”

That an offense is impeachable does not mean it warrants impeachment. Congress must account for both the context of the offense and the general political context of the times — such as the potential public reaction to impeachment — which a popular stampede discourages.

If Mr. Trump’s actions merit impeachment, the most important task will be persuading many of the considerable number of Americans whose support for the president is apparently immovable to view his removal as necessary for the public good rather than as a coup d’état.

Republicans who are scurrying to denounce and delegitimize investigations into Mr. Trump — inquiries that are not yet complete — threaten the converse result: If Mr. Trump is exonerated, those who sought his downfall will be able to say it was the product of political interference.

Just as these efforts will give cover to those who have already reached conclusions hostile to Mr. Trump, the current campaign to incite impeachment will make it plausible for his staunch defenders to say any future effort is illegitimate, even if it arises from sober processes. The campaign atmosphere surrounding the calls for impeachment feeds directly into Mr. Trump’s claim that he came to slay the establishment beast, and the beast responded by seeking to destroy him. The taint on an impeachment arising from such a process would be inescapable.

The idea of a campaign-style drive for impeachment is also hostile to our constitutional design, which does not require a criminal offense to impeach a president but does feature the trappings of a criminal prosecution. The purpose of those trappings is not simply to protect the rights of the accused but also to establish the process’ legitimacy in the public eye.

It mistakes the political nature of impeachment to make it simply susceptible to ordinary political forces. Immediately after declaring impeachment’s availability for political offenses, Alexander Hamilton’s Federalist 65 warns that the “prosecution” of impeachments, “for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.”

The constitutional architecture of impeachment is supposed to slow the rush to judgment that might result from these passions. Hamilton called impeachment “a method of national inquest into the conduct of public men,” and the analogy indicates the gravity of the undertaking.

The House is designed to be the most direct representative of the people in this regard. If the people want the president impeached, the House will eventually do so. But “eventually” is the key: That body is also designed to register the people’s intense and sustained views without being captive to passing whims.

The Senate is supposed to operate at a greater constitutional distance. That is becoming a challenge as the velocity of communications reduces the separation of senators from public opinion and as the House — with the polarization and partisanship it now reflects — becomes a primary feeder to the Senate.

All this heightens the demands on those who would participate in a process of impeachment to do so with the sobriety a national inquest requires. It remains unclear both whether Mr. Trump has committed impeachable offenses and whether, if he has, impeachment is a prudent political remedy. What is clear is the imperative for Congress to treat the exploration of those questions with a gravity that will reconcile the public, including Mr. Trump’s base and his most intense critics, to the answers.

Greg Weiner (@GregWeiner1) is a political scientist at Assumption College and the author, most recently, of “American Burke: The Uncommon Liberalism of Daniel Patrick Moynihan.”